State v. Evans, 99-2315-CR.

Citation617 N.W.2d 220,238 Wis.2d 411,2000 WI App 178
Decision Date27 July 2000
Docket NumberNo. 99-2315-CR.,99-2315-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Aaron EVANS, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Phillips, state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, with Thomas J. Balistreri, assistant attorney general.

Before Dykman, P.J., Eich and Vergeront, JJ.

¶ 1. EICH, J.

Aaron Evans was convicted of kidnapping and two counts of sexual assault, and was sentenced to an aggregate prison term of eighty years. In conjunction with that sentence, the court ordered restitution "up to 25% of [Evans's] prison earnings account," leaving it to the Department of Corrections to determine the specific amount.

¶ 2. Evans appeals from the judgment of conviction, and from an order denying his motions for postconviction relief. He argues: (1) that the court erroneously exercised its discretion when it prevented a defense expert from being seated at counsel table for the purpose of assisting his trial attorney in cross-examining expert witnesses for the prosecution; and (2) that the court lacked statutory authority to impose restitution on the facts of this case.

¶ 3. We conclude that the circuit court properly exercised its discretion in declining to exempt Evans's expert from the court's witness sequestration order, and we affirm his conviction. We also conclude, however, that the restitution statute, WIS. STAT. § 973.20 (1997-98),2 does not give the court authority to impose restitution in the manner employed in this case, and we therefore reverse that limited portion of the judgment and order.

I. Witness Sequestration

¶ 4. Evans was charged with breaking into his ex-girlfriend's apartment and sexually assaulting her fifteen-year-old daughter. The prosecution used DNA samples extracted from physical evidence taken from the apartment, and from tissue samples taken from the victim, to secure his conviction.

¶ 5. As the trial was about to begin, Evans's attorney, Michael Backes, requested that Dr. Alan Friedman, a listed expert witness for the defense, be exempted from the court's order sequestering all witnesses. Backes wanted Friedman to sit at counsel table to assist him in cross-examining the State's DNA witnesses. He said he needed Friedman's help because DNA evidence was "a complex matter," which he found "somewhat confusing." Backes also said he was unsure at that time whether Friedman would actually testify, suggesting that it was "unlikely." The prosecutor objected, claiming that it would be "unfair" to allow Friedman to hear the testimony of the State's experts, "[a]nd then at some point [he] may decide to testify," thus frustrating the purpose of the sequestration order. Backes then asked whether there would be "any objection" to Friedman's presence at counsel table if Backes would agree not to call him as a witness, to which the court responded: "[W]hy don't you see whether or not you can do this without his presence at the . . . counsel [table], and we'll go from here, with the State's witnesses being available to Dr. Friedman." Friedman never testified and Backes never raised the subject again.

¶ 6. The statute governing exclusion of witnesses, WIS. STAT. § 906.15, authorizes a judge to exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses. The purpose of sequestration is to assure a fair trial—specifically, to prevent a witness from "shaping his [or her] testimony" based on the testimony of other witnesses. Nyberg v. State, 75 Wis. 2d 400, 409, 249 N.W.2d 524 (1977),overruled on other grounds by State v. Ferron, 219 Wis. 2d 481, 579 N.W.2d 654 (1998). The statute does not, however, permit exclusion of "a person whose presence is shown by a party to be essential to the presentation of the party's case." Section 906.15(2)(c).

[1]

¶ 7. Sequestration of witnesses is within the discretion of the trial court. See Ramer v. State, 40 Wis. 2d 79, 82-83, 161 N.W.2d 209 (1968)

. And, as we have often said, our review of discretionary determinations is deferential: we do no more than examine the record to gauge whether the circuit court reached a reasonable conclusion based on proper legal standards and a logical interpretation of the facts. See State v. Salentine, 206 Wis. 2d 419, 429-30, 557 N.W.2d 439 (Ct. App. 1996).

[2]

¶ 8. One seeking relief from a sequestration order bears the burden of showing that the person sought to be exempted from the order is "essential"; a showing that the person's presence would be merely helpful or desirable is not enough. Opus 3, Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628, 629 (4th Cir. 1996); United States v. Jackson, 60 F.3d 128, 135 (2d Cir.),cert. denied 516 U.S. 980 (1995).3 Other cases indicate that where, as here, the exemption is sought to enable a third party to assist a party's attorney in conducting the trial, he or she must show that the person "has such specialized expertise or intimate knowledge of the facts that [counsel] could not effectively function without the presence and aid of the witness." Oliver B. Cannon & Son, Inc. v. Fidelity & Cas. Co., 519 F. Supp. 668, 678 (D. Del. 1981).

¶ 9. As indicated above, Backes's statements supporting his request were broad and unparticularized. And when he appeared to be unwilling to commit to not calling Friedman as a witness, the court suggested that the trial proceed with Friedman excluded from the courtroom and see whether counsel could get along without him, and that then "we'll go from [there]." On appeal, Evans repeats Backes's assertions about the complexity of DNA testing and suggests that had Friedman been allowed to hear the "actual testimony" of the State's witnesses, to see their exhibits and "to hear how those exhibits justified the [experts'] conclusions," he would have then been in a position to "interpret this testimony for [Backes] . . . [and] to recommend effective cross-examination strategies or techniques."

[3]

¶ 10. We are satisfied that, on this record, the circuit court did not erroneously exercise its discretion in denying Evans's request that Friedman be exempted from the sequestration order. Evans has not shown that Friedman's presence in the courtroom was "essential to the presentation of [his] case" within the meaning of WIS. STAT. § 906.15(2)(c). Helpful, perhaps, but not so essential that his attorney could not effectively function with Friedman in the hallway, rather than sitting next to him in the courtroom. Backes's statements to the circuit court, and Evans's assertions on appeal are characterized by generalization and vagueness. Friedman's qualifications in the field of DNA testing were never established,4 and Evans has not detailed any specific way in which Friedman would have assisted him with respect to the DNA evidence. Finally, as we have noted above, the circuit court kept the door open for defense counsel to make a more specific showing as to the necessity for Friedman's presence—an offer Evans never took up.

II. Restitution

¶ 11. As we have noted above, the circuit court ordered Evans to pay "[r]estitution up to 25 percent of his prison earnings account," and the judgment of conviction contained the entry "TBD" under the heading "Restitution." The court explained in its decision on Evans's postconviction motions that the entry means, in essence, that restitution is "to be determined" by the department of corrections "pursuant to standard Milwaukee County procedure." The court went on to say that, under that procedure, "[i]f the Department determines that no restitution is required based on its investigation, restitution is set at zero; if it determines that restitution is required, the defendant has the opportunity to challenge the amount of restitution set by the Department in a court hearing."5 [4]

¶ 12. Evans claims that the circuit court lacked statutory authority to order restitution.6 Whether a particular act is authorized by statute is a question of law which we review de novo. See State v. Schmaling, 198 Wis. 2d 756, 760, 543 N.W.2d 555 (Ct. App. 1995)

.

¶ 13. Restitution is governed by WIS. STAT. § 973.20, which requires courts to order full or partial restitution "under this section" to any victim of a crime "unless the court finds substantial reason not to do so and states the reason on the record." WIS. STAT. § 973.20(1r). After setting forth various restitution alternatives for specific offenses and injuries, the statute continues:

(13)(c) The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. . . . If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. In other cases, the court may do any of the following:
1. Order restitution of amounts not in dispute as part of the sentence or probation order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter. . . .
2. Adjourn the sentencing proceeding for up to 60 days pending resolution of the amount of restitution by the court, referee or arbitrator.
3. With the consent of the defendant, refer the disputed restitution issues to an arbitrator acceptable to all parties, whose determination of the amount of restitution shall be filed with the court within 60 days. . . .
4. Refer the disputed restitution issues to a court commissioner or other appropriate referee, who shall conduct a hearing on the matter and submit the record thereof, together with proposed findings of fact and conclusions of law,
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